Shelby County Tries To Reveal The Authors Of Nearly 10,000 Anonymous Internet Comments

from the free-speech-means-something-different-apparently dept

We've had plenty of stories about attempts to reveal anonymous commenters. Time and time again, we've pointed out that there needs to be a very high bar for legally requiring the identification of such commenters, because the right to anonymous speech is recognized by the courts as being protected by the First Amendment. Yet, many seem to ignore this -- and quite frequently we even see government officials themselves seeking to uncover anonymous commenters. However, as Paul Levy has pointed out, Shelby County, Tennessee has taken an attempt to uncover the identities of anonymous commenters to new levels: seeking the identities on somewhere around 10,000 anonymous comments posted to the website of Memphis' local newspaper, the Commercial Appeal.

The link explains the reasoning behind this, but the short summary is that Shelby County (home to Memphis) is trying to push back on a state law. The reasons Shelby is pushing back may be noble (it appears to feel that the reasons for the law itself are based on racism), but even so, that's no excuse for stripping away anonymity on thousands of comments. Levy is helping in trying to block these subpoenas:

The Commercial Appeal, standing on its own First Amendment rights as well as the rights of customers who have registered to post comments on its web site, has served Rule 45 objections to the subpoena. The objections, which I signed along with Lucian Pera, long-time counsel to the Commercial Appeal, argue that this theory – assuming that it is the basis for the subpoena – is not a sufficient reason for depriving members of the public of the First Amendment right to debate the propriety of government policy on an anonymous basis. In addition, we argue that because the subpoenas have been issued by government bodies, they are precluded by federal statutes that limit government access to such information to cases involving a probability of criminal wrongdoing. Indeed, the very same firm that is representing Shelby County was forced to withdraw a subpoena on behalf of the City of Memphis, seeking to identify a blogger who criticized the city's police chief, for the same statutory reasons.

Furthermore, he points out that the attempt to reveal such a massive number of commenters, indiscriminately, is somewhat breathtaking. The very scale of the attempt clearly suggests that the goal here has little to do with actually uncovering illegal activities, and is almost entirely about creating a chilling effect on public speech. Even if that speech itself is reprehensible (such as racist commentary), that doesn't mean that we should support such a blanket subpoena wiping way First Amendment rights.

Even apart from the question whether the legal theory behind the subpoena can meet the test of a compelling state interest, needed to overcome the right to speak anonymously, is the sheer indiscriminateness of the subpoena, seeking to identify everybody who spoke about the issue underlying the legislation regardless of whether they favored the consolidation or opposed it, and whether they expressed racist views or not. In past cases involving Doe subpoenas, it has often seemed to me that the plaintiff had the germ of a good case, and perhaps a reason to identify one or two critics, but then obscured the merit of its case by throwing everything but the kitchen sink into the subpoena. Here, the very breadth of the subpoena suggests that County's motive is to chill public discussion of an important policy question, by sending the message that if you speak out, you will be subpoenaed.

In the dozen years that I have been litigating cases involving Internet anonymity, I cannot recall any case involving close to so many anonymous speakers. In Pilchesky v. Gatelli, the chair of the Scranton Pennsylvania City Council sought to identify about ninety different Scranton citizens who has posted hurtful comments about her on a community message board established by one of her critics, and in Donato v. Moldow, officials of the Borough of Emerson, New Jersey sought to identify the authors of more than one hundred critical comments. In both of these cases, the trial courts upheld the right to speak anonymously and quashed the subpoenas (with a small number of exceptions in the Pennsylvania case – and those identities were preserved on appeal). A large number of posters were also involved in my first case involving a subpoena to identify anonymous speakers, when Northwest Airlines sought to identify flight attendants who had advocated a "sickout" during collective bargaining negotiations.

Shelby County subpoena outstrips these cases in indiscriminateness by a factor of ten or even a hundred – more than 9300 comments remain on the stories, and the removed comments likely take the number of comments at stake in this case beyond ten thousand. Many of the comments were posted by repeat customers (we can tell because, as on most newspaper web sites, only registered users can post comments), but the estimate so far is that more than 2000 separate people are facing possible denial of the right to speak anonymously. Even most file-sharing cases pale by comparison: the recording or movie companies typically sue and seek to identify only hundreds of anonymous uploaders at a time.